1. Definitions; License Grant & Restrictions
“Client Customers” means, if Client is a marketing agency or similar service, the companies for whom Client uses the Platform Service(s); "Client Data" means any images, data, information or material that Client or Client’s Users, submit to Sticky or the Platform Service(s) in the course of using the Platform Service(s);
"Content" means the information, documents, reports, software, products and services contained in or made available via the Platform Service(s), other than Client Data;
“Crowd” means the group of individual data subjects with whom Sticky has a relationship and that that agree to participate in the applicable Experiment(s);
“Credits” means prepaid credit amounts that are available to apply to use of the Platform Services to upload Client Data and conduct Experiments for the selected Crowds;
“Experiment(s)” means surveys that Client may conduct through the Platform Service(s) and that display the Client Data; "Initial Term" means the initial subscription period commencing on the Order Effective Date as specified in the applicable Order Form;
"Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;
"Order Effective Date" means the date identified in an Order Form as the date on which such Order Form shall be effective;
"Platform Service(s)" means Sticky's hosted visual engagement and data analytics platform known as “Sticky,” as described by Sticky on https://www.tobiipro.com/product-listing/sticky-by-tobii-pro developed, operated, and maintained by Sticky or its third party hosting provider and accessible via a designated web;
"Renewal Term" means each subsequent period equal in length to the Initial Term;
"Sticky Technology" means all of Sticky's proprietary technology used by Sticky to provide the Platform Service(s);
"User(s)" means Client’s employees, representatives, consultants, contractors or agents who are authorized to use the Platform Service(s) and have been supplied user identifications and passwords by Client (or by Sticky at Client’s request).
1.3 Client Customers. Notwithstanding the terms of Sections 1.2 or 2 below, if Client is a marketing advertising agency or other service provider, then Client may download, copy, license, sell and distribute tangible copies of reports that include data generated through Client’s use of the Platform Service(s) to Client Customers, on the condition that Client disclaims all warranties and liabilities on behalf of Sticky or Client’s licensors.
2. Limitations on Use
Except as otherwise expressly permitted hereunder, Client shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Platform Service(s) or the Content in any way; (ii) modify or make derivative works based upon the Platform Service(s) or the Content; (iii) create Internet "links" to the Platform Service(s) or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Platform Service(s) in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Platform Service(s), or (c) copy any ideas, features, functions or graphics of the Platform Service(s). Additionally, Client shall not use the Platform Service(s) to: (i) upload or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights or Intellectual Property Rights; (ii) upload or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iii) interfere with or disrupt the integrity or performance of the Platform Service(s) or the data contained therein; or (iv) attempt to gain unauthorized access to the Platform Service(s) or its related systems or networks or to any Client Data belonging to another customer or to experiments that are not displayed in, or intended for, Client’s account. Client acknowledges and agrees that any reports generated through the Platform Service(s) will only include data of the Crowd that does not personally identify any individual. Client may not use the Platform Service(s) to request from a Crowd, or otherwise process, any information (whether identifiable or not) regarding racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data, data concerning health or data concerning sexual life or sexual orientation.
3. Order Process
Each Order Form shall become incorporated herein by reference. If Client’s business practices require that a purchase order number be issued prior to payment of any Sticky invoices issued, then such purchase order number must be recorded within the Order Form.
Client’s execution and return of an Order Form to Sticky without designating a purchase order number shall be deemed an acknowledgement that no purchase order number is required for payment of invoices hereunder. Additionally, terms, provisions or conditions on any purchase order, acknowledgement, or other business form or writing that Client may use in connection with the provision of Platform Service(s) by Sticky are hereby rejected and will have no effect on the rights, duties or obligations of the parties hereunder, regardless of any failure of Sticky to object to such terms, provisions or conditions.
4. Client Data
5. Intellectual Property Ownership
6. Client’s Responsibilities and Mutual Indemnities
6.1 Client Responsibilities. Client is responsible for all activity occurring under Client’s User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Client’s use of the Platform Service(s) and the Client Data, including those related to data privacy, international communications and the transmission of technical or personal data.
Client shall: (i) notify Sticky immediately of any unauthorized use of any password or account or any other known or suspected breach of security with respect to the Platform Service(s); (ii) report to Sticky immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by Client or Client’s Users; and (iii) not impersonate another Sticky user or provide false identity information to gain access to or use the Platform Service(s).Client agrees that Client will comply with all applicable laws and regulations in connection with Client’s use of the Platform Service(s), including but not limited to, all applicable privacy and export control laws and regulations.
THIS SECTION 6.3 STATES STICKY’S ENTIRE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS.
7. Charges and Payment of Fees
7.1 Charges and Credits. Client will pay Sticky all fees and charges as set forth in the Order Form. Client may cancel orders for Platform Service(s) effective at the end of the current Initial Term or Renewal Term as set forth in Section 12.1. Client will not receive any refunds for fees paid except as set forth in Section 6.3. Purchased Credits for Experiments must be used and redeemed during the Initial Term or they will rollover to be used during the first thirty (30) days of the subsequent Renewal Term. If Credits are not used during the Initial Term or within the first thirty (30) days of the subsequent Renewal Term, Client will be deemed to waive rights to use and redeem such Credits. Credits will be redeemed in the order in which they were purchased (i.e. on a first in, first out basis where the first Credits purchased will be the first Credits redeemed).
7.2 Changes and Taxes. Sticky reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least thirty (30) days prior notice to Client, effective upon the next Renewal Term in accordance with Section 12, below. If Client does not cancel as described in 9 below, such changes shall become effective at the commencement of the Renewal Term. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). Client is responsible for paying all Taxes associated with its purchases hereunder. If Sticky is required to collect any Taxes from Client, such Taxes will be added to the charges on Client’s credit card or added to Client’s invoice, as applicable.
7.3 Payments and Billing Information. Unless otherwise stated on the Order Form, any fees shall be payable against invoice from Sticky (30 days net). If Client have agreed to pay by credit card, Client authorizes Sticky to charge Client’s credit card for all Platform Service(s) set forth in the Order Form. Client consents to receiving electronic communications from Sticky. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Platform Service(s). Client agrees to provide Sticky with accurate billing and contact information, including Client’s legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact. Client agrees to update this information within thirty (30) days of any change to it. If the contact information Client has provided is false or fraudulent, Sticky reserves the right to terminate Client’s access to the Platform Service(s) in addition to any other legal remedies.
8.1 Confidential Information. “Confidential Information” means any non public information that relates to the actual or anticipated business, research, or development of Client or Sticky and any proprietary information, trade secrets, and know how of Client or Sticky that are disclosed to either party or its agents, directly or indirectly, in writing, orally, or by inspection or observation of tangible items.
Confidential Information includes information that is defined as “Confidential Information” under any Order Form between the parties. Confidential Information also includes the confidential information of third parties that has been provided to Client or Sticky. Each party’s Confidential Information is the sole property of that party.
8.2 Exceptions. Confidential Information does not include any information that either party can demonstrate: (a) was publicly known and made generally available in the public domain before the other party disclosed the information, (b) became publicly known and made generally available, after disclosure by either party, through no wrongful action or inaction of either party or others who were under confidentiality obligations, (c) was in either party’s possession, without confidentiality restrictions, at the time of disclosure by either party, as shown by that party’s files and records, or (d) was independently developed without use of or reference to the Confidential Information.
9. Representations & Warranties
10. Disclaimer of Warranties
EXCEPT AS PROVIDED IN SECTION 9, STICKY AND ITS LICENSORS MAKE NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE PLATFORM SERVICE(S) OR ANY CONTENT. STICKY AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE PLATFORM SERVICE(S) WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE PLATFORM SERVICE(S) WILL MEET REQUIREMENTS OR EXPECTATIONS, OR (C) THE PLATFORM SERVICE(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ALL OTHER CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY STICKY AND ITS LICENSORS.CLIENT IS RESPONSIBLE FOR BACKING UP ITS OWN CLIENT DATA. STICKY'S PLATFORM SERVICE(S) MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. STICKY IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
11. Limitation of Liability
12. Term, Renewal and Termination
13. Dispute Resolution and Binding Arbitration Provision
Tobii Technology, Inc is listed on the Order Form: ATT: LEGAL 12007 Sunrise Valley Drive, Suite 400, Reston, VA 20191, USA
Tobii Pro AB is listed on the Order Form: ATT: LEGAL Tobii AB Box 743 182 17 Danderyd, SWEDEN
Effective: January 1, 2020